Dye v Commonwealth Securities Ltd (No 4)

In Dye v Commonwealth Securities Ltd (No 4), the applicant sought to disqualify the judge from continuing to hear the matter on the basis of apprehended bias. The case was before the Federal Court of Australia. The applicant argued that the judge's prior comments and findings in a previous interlocutory judgment created a reasonable apprehension of prejudgment and bias. The applicant submitted that the judge referred to documents that were not in evidence and made findings of fact on issues that would be contested at the trial.

The court considered whether the judge's comments and findings in the interlocutory judgment could lead a fair-minded observer to apprehend bias, even if there were no clear findings of fact or on credit. The court noted that the issue of bias in interlocutory judgments is a difficult one, and if there is any real possibility of a reasonable apprehension of prejudgment or bias, the judge should recuse themselves. The court found that the submissions regarding the use of the female pronoun and references to documents outside of evidence were without merit. The court also found that the references to findings of fact were not made on issues that would be contested at the trial.

The court concluded that there was no reasonable apprehension of bias and that the judge should not recuse themselves. The judge, however, decided to recuse themselves as a matter of prudence, given the difficulty of the issue and the importance of maintaining public confidence in the administration of justice. The court ordered that the matter be referred to the NSW District Registry for reassignment to another judge and that the question of costs be reserved.